JUDGMENT 1. - Three brothers, namely Mahaveer, Raju and Vinod being sons of Devi Lal, were nominated as accused in written report (Exhibit-D/2) submitted by Kanwar Lal (P.W.9) before Sub-Inspector Leeladhar (P.W.12), posted at Police Station Itawa, District Kota. On the basis of written report (Exhibit-D/2), a formal FIR (Exhibit-P/36) was registered for the offences under Sections 307, 323 and 302/34 IPC. The investigating agency on the basis of written report concluded its investigation and found all the three accused named therein guilty of offence of murder and submitted the report. The report of investigation along with the accused was committed to the court of Sessions and the trial was entrusted to the court of Additional Sessions Judge (Fast Track) No.1, Kota. 2. The trial court came to the conclusion that all the appellants are guilty of offence under Section 447, 323 or 323/34, 324 or 324/34, 307 or 307/34 and 302 or 302/34 IPC. Having convicted the appellants for the said offences, vide impugned judgment dated 31.3.2006, the trial court vide a separate order of even date, sentenced them as under:- U/s 447 IPC- to undergo three months' R.I. U/s 323 or 323/34 IPC- to undergo one year's R.I. U/s 324 or 324/34 IPC- to undergo two years' R.I. U/s 307 or 307/34 IPC- to undergo seven years' R.I. and to pay a fine of Rs. 3,000/- each, in default of payment of fine, to further undergo six months' R.I. U/s 302 or 302/34 IPC- to undergo life imprisonment and to pay a fine Rs. 10,000/- each, in default of payment of fine, to further undergo one year's R.I. All the sentences were ordered to run concurrently. 3. Aggrieved against their conviction and sentence, two appeals have been preferred before this Court. Mahaveer and his brother Vinod have instituted D.B. Criminal Appeal No.382/2006, whereas Raju has preferred D.B. Criminal Appeal No. 564/2006. Since in both the appeals, same judgment is impugned, we shall decide both the appeal together by this common judgment. 4. As stated earlier, criminal proceedings were set into motion on the basis of written report (Exhibit-D/2) presented by Kanwar Lal (P.W.9). The said written report when translated into English, reads as under:- "Application for registration of case dated 18.2.2005 To SHO, Police Station Itawa. Sub: for registration of case of murder. 4. As stated earlier, criminal proceedings were set into motion on the basis of written report (Exhibit-D/2) presented by Kanwar Lal (P.W.9). The said written report when translated into English, reads as under:- "Application for registration of case dated 18.2.2005 To SHO, Police Station Itawa. Sub: for registration of case of murder. Sir, In reference to subject above, it is submitted that today on 18.2.2005, at about 5:30 PM, in our field at Rohili, I, my wife Kanya Bai, my son Ghanshyam, my daughter Rukmani, my son's wife Lalita, were harvesting our mustard crop. Raju s/o Devi Lal, Vinod s/o Devi Lal and Mahaveer s/o Devi Lal having neighbouring field, came armed. Raju was armed with gandasi, Vinod was armed with dhariya and Mahaveer was armed with Kutiya. With common intention, they opened murderous assault upon us. Raju gave a gandasi blow on the head of my wife, Kanya Bai. Vinod gave a dhariya injury on the head of my son Ghanshyam. I, my daughter and my daughter-in-law came ahead to save them. Then Mahaveer gave beating with Kutiya to us and caused injuries on the head of my daughter, Rukmani Bai and in the head of Lalita. I received injuries on my feet. The above said persons in order to forcibly take possession of our land, has caused injuries due to which my wife Kanya Bai has died. My son, daughter and daughter-in-law have received injuries. I have brought them to Itawa hospital. The report is presented before yourself for necessary action. Applicant Kanwar Lal s/o Nenki Lal by caste Mali, aged 55 years, R/o Peepalda Kalan, P.S. Itawa, District Kota." 5. As is evident, in the occurrence Kanya Bai had died, Rukmani Bai (P.W.4), Kanwar Lal (P.W.9) and Lalita Bai (P.W.14) and Ghanshyam not examined, had received injuries. 6. Dr. Sita Ram Verma (P.W.10) on 19.2.2005, at about 9:00 AM, had conducted autopsy on the dead body of Kanya Bai, wife of Kanwar Lal. As per Post-Mortem Report (Exhibit-P/26), he had found following injuries on the person of Kanya Bai:- "(i) Incised wound 7 x 11/2 x bone deep on the frontal parietal region of scalp at middle part. (ii) Incised wound 5 x 11/2 x bone deep on the parieto occipital region on scalp middle part." 7. A minute perusal of the injuries will reveal that both the injuries are in middle of the scalp. (ii) Incised wound 5 x 11/2 x bone deep on the parieto occipital region on scalp middle part." 7. A minute perusal of the injuries will reveal that both the injuries are in middle of the scalp. There is not much distance between the two injuries and thus, they can be caused by a single blow. 8. Dr. Sita Ram Verma (P.W.10) on 18.2.2005, at 8:00 PM, had also examined Kanwar Lal (P.W.9) vide injury report (Exhibit-P/23) and he found the following injury on his person:- "Bruise with multiple abrasion - 31/2 x 21/2 cm, 1/2 x , x cm, 1 x on the left lateral side of upper 1/3 leg." The injury was caused by blunt weapon and was declared simple. 9. The above said doctor, at 7:15 PM, had also examined Rukmani Bai (P.W.4), daughter of Kanwar Lal (P.W.9) vide injury report (Exhibit-P/24) and he found the following injuries on her person:- "Lacerated wound 6 x 11/2 on the fronto, up to bone region, deep scalp left side." This injury was also caused with blunt weapon and was declared simple. 10. Dr. Sita Ram Verma (P.W.10) on 18.2.2005 at 7:45 PM, had examined Lalita (P.W.14) vide injury report (Exhibit-P/25) and had found the following two injuries on her person:- "1. Incised wound 3 x 1/2 x cm on the frontal region, left side. 2. Incised wound 31/2 x 1/2 x 1/2 cm on the occipital region of scalp." 11. This witness on 18.2.2005 at 6:45 PM, had examined Ghanshyam, son of Kanwar Lal (P.W.9) and as per injury report (Exhibit-P/27), had found the following injuries on his person:- "1. Incised wound 7 x 11/2, bone deep on the occipital region right side. 2. Incised wound 41/2 x 1/2, bone deep, on the left frontal region of scalp. 3. Incised wound 5 x 1/2, bone deep on the occipital region of scalp, left side. 4. Lacerated wound 31/2 x 1/2 x 1/2 cm on the occipital region middle part. 5. Swelling on the left side of back 12 x 64 thoracic region." Injuries No. 1 to 3 were declared grievous and dangerous to life. Injuries No. 4 and 5 were declared simple. 12. 4. Lacerated wound 31/2 x 1/2 x 1/2 cm on the occipital region middle part. 5. Swelling on the left side of back 12 x 64 thoracic region." Injuries No. 1 to 3 were declared grievous and dangerous to life. Injuries No. 4 and 5 were declared simple. 12. This witness, as per injury report (Exhibit-D/4) had also examined the accused-appellant, Raju, and had found the following injuries on his person:- "(i) Incised wound 4 x 11/2 x 1/2 on the right lower 1/3 dorso laterally. (ii) Bruise 11/2 x 1/2 cm on the right ring finger middle phalanx. (iii) Incised wound 41/2 x 1/2 x 1/2 cm on the right tempro-occipital region of scalp. (iv) Bruise 11 x 1/2 cm on the left parietal region." A perusal of the injury report of the accused Raju, reveals that the injury No.3 was an incised wound on the head. Though, the said injury was declared simple. 13. It will be pertinent to notice that in written report, it has been nowhere stated by the complainant party that they had also caused any injury to the accused Raju. 14. Kanwar Lal, the first informant, appeared in the court as P.W.9. In his testimony, the first informant stated that Kanya Bai was his wife, Ghanshyam is his son, and Rukmani is his daughter. He has got three sons. Name of other two sons are Dashrath and Satyanarayan. He got a field in Rohili. Neighbouring field belonged to Devi Lal. Devi Lal has got five sons, Mahaveer, Vinod, Raju, name of other two sons are not know to him. It is stated that on 18.2.2005, witness along with his wife, son Ghanshyam, daughter Rukmani and wife of Dashrath, Lalita, were cutting their mustard crop, when accused came armed and raised a protest that the complainant party had expanded their field and had made area of the field of accused as part of the field of the complainant. It is stated that Raju gave a gandasi blow on the head of Kanya Bai. The witness improved the version and further stated that Vinod also caused a dhariya injury on the head of Kanya Bai. Mahaveer also gave an injury with Kutiya on the head of his wife. Ghanshyam came forward to save his mother, then Vinod caused injury on the head with dhariya to Ghanshyam. Mahaveer also caused injuries to Ghanshyam with Kutiya. The witness improved the version and further stated that Vinod also caused a dhariya injury on the head of Kanya Bai. Mahaveer also gave an injury with Kutiya on the head of his wife. Ghanshyam came forward to save his mother, then Vinod caused injury on the head with dhariya to Ghanshyam. Mahaveer also caused injuries to Ghanshyam with Kutiya. Raju also caused injury with gandasi on the head of Ghanshyam. Injuries were also caused to Rukmani Bai. In the occurrence Kanya Bai died and other were examined by the doctor.The witness had admitted in the cross-examination that adjoining field belongs to the accused. 15. Rukmani Bai (P.W.4), daughter of the deceased, Lalita (P.W.14), have corroborated the testimony of Kanwar lal (P.W.9). 16. We need not notice the statement of various others, who participated in the investigation or had attested the arrest memo or recovery of weapon effected from the accused. 17. Mr. Suresh Sahni, the learned counsel appearing for the appellant Raju, has submitted that in the occurrence, Raju, accused-appellant had received four injuries, out of which one injury is on the head. The complainant party have not explained the injuries on the person of accused Raju. Thus, they have suppressed the origin and genesis of the occurrence. It is submitted that thus, it is to be assumed that the the complainant were aggressor. 18. Mr. Aladeen Khan, the learned Public Prosecutor has stated that injury on the person of Raju are not such that they are required to be explained by the prosecution. 19. The accused, Raju, who had received injuries in the occurrence has appeared in the witness box as D.W.1. He stated in the court that on 18.2.2005, at about 5:00 PM, he was guarding his field, when Kanwar Lal armed with Kulhari, Ghanshyam armed with Kutiya, Kanya Bai, Rukmani, and Lalita armed with Dantali along with two other persons came. They attacked him. Kanwar Lal caused Kulhari injury on his head which landed on the head of Ghanshyam. At that time, nobody else was in the field. They all gave beating to him and he became unconscious. 20. On perusal of the testimony of Raju (D.W.1) and three injured witnesses examined by the prosecution, namely Kanwar Lal (P.W.9), Rukmani (P.W.4) and Lalita (P.W.14), reveal that both sides are not coming to the court with clean hands. Both sides have more to hide than to reveal. They all gave beating to him and he became unconscious. 20. On perusal of the testimony of Raju (D.W.1) and three injured witnesses examined by the prosecution, namely Kanwar Lal (P.W.9), Rukmani (P.W.4) and Lalita (P.W.14), reveal that both sides are not coming to the court with clean hands. Both sides have more to hide than to reveal. Neither the prosecution has explained the injuries on the person of accused, nor the accused have taken a version that they acted in self-defense and have caused injuries to Kanya Bai and other witnesses. Furthermore, the witnesses have improved their case and have distributed injuries on the person of deceased, Kanya Bai, to all the three accused and have also assigned each injury to each accused and has further stated that all the three accused caused injuries to Ghanshyam. Thus, each accused has been assigned specific injury. To us, the written report (Exhibit-D/2) contains a spontaneous version. Raju has caused one injury on the head of Kanya Bai. Vinod has caused injuries to Ghanshyam, whereas Mahaveer had caused blunt weapon injury to Lalita, Rukmani and Kanwar Lal. In this context, evidence of the investigating officer, Gulab Singh (P.W.13), who had carried most of the investigation, assume importance. Gulab Singh (P.W.13) in the court has stated as under:- " ;g ckr eq>s Lo;a jktw us gh crk;h FkhA vfHk;qDr ds yxh pksVksa ds ckcr eSaus dksbZ eqdnek ntZ ugha fd;kA ;g dguk xyr gS fd vfHk;qDr jktw dk fpfdRlh; eftLV~sV lk0 ds vkns'k ls gqvk gks cfYd eSaus Lo;a djk;k FkkA " vuqla/kku ls ;g izdV gqvk fd i{kdkjku ds e/; ;g >xM+k [ksr dh lhek ds fookn dks ysdj gqvk FkkA " 21. Taking totality of circumstances, we agree with the observations of Investigating Officer, Gulab Singh (P.W.13), who was then posted as S.H.O., Police Station Itawa. From perusal of the entire evidence, and taking holistic view of the case, it can reasonably be inferred that without any pre-meditation, the occurrence had ensued suddenly due to dispute between the parties over the boundary of the field. The fields of the parties adjoin each others field. There is no history of previous litigation or inimical relations. The parties came to blows when accused had objected to demolishing of boundary of their field and had resisted attempt of the complainant party to expand their field. The fields of the parties adjoin each others field. There is no history of previous litigation or inimical relations. The parties came to blows when accused had objected to demolishing of boundary of their field and had resisted attempt of the complainant party to expand their field. It is another matter that the accused party came better of the complainant party. It is to be noted that two injuries separately described on the person of Kanya Bai, deceased are very close to each other on the middle of the head of the deceased and can be result of one blow, which has been attributed to Raju. Vinod has caused injuries to Ghanshyam and Mahaveer to other witnesses. 22. Taking into consideration that parties came to blows suddenly, we are of the view that the whole occurrence will fall under Exception 4 of Section 300 IPC. Thus, Section 34 IPC cannot be attracted and each accused is responsible for the injury caused by him. The fatal injury is attributed to Raju. He has given solitary blow in the heat of moment. Thus, he shall be responsible for the offence punishable under Section 304-I IPC. Vinod shall be individually liable for the offence punishable under Sections 307 and 324 IPC for causing injuries to Ghanshyam, and Mahaveer shall be responsible for the offence punishable under Section 323 IPC. 23. However, we are of the view that no offence under Section 447 is made out, as we cannot pin point with the precision as to where occurrence had taken place, as the fields of both the parties are adjoining and in the occurrence, parties not being static, may have gone to each others field. 24. Having held that Raju alone is responsible for offence under Section 304-I IPC, we set aside his conviction under Section 302 IPC and the sentence of life imprisonment awarded to him. We convert the offence qua Raju from 302 IPC to 304-I IPC and sentence him to ten years' R.I. With a fine of Rs. 10,000/-, in default of payment of fine, to further undergo one year's R.I. 25. We hold Vinod responsible for causing injury under Sections 307 and 324 IPC. Vinod has already undergone actual sentence of about one year and one month. 10,000/-, in default of payment of fine, to further undergo one year's R.I. 25. We hold Vinod responsible for causing injury under Sections 307 and 324 IPC. Vinod has already undergone actual sentence of about one year and one month. Considering that occurrence had taken place in the year 2005, and the appellant Vinod is in the corridors of the court for the last ten years, we reduce the sentence awarded to him under Section 307 IPC and 324 IPC to the period already undergone. 26. The appellant, Mahaveer has undergone about four and a half month of actual sentence. We have held him guilty of offence under Section 323 IPC. Therefore, we also reduce the sentence awarded to him substantively for offence under Section 323 IPC, to the period already undergone i.e. four and half months. 27. In terms of above mentioned modification, qua offence and sentence, both the appeals stand disposed of.Appeal partly allowed. *******